The Dalton Ice Company sued out an attachment against the Casey & Hedges Manufacturing Company, and filed its declaration laying damages at $250. Defendant demurred on the grounds, that the declaration set forth no cause of action, and stated no item of damage. The declaration was amended, and the defendant demurred to the amendment on the grounds, that it set up a new and distinct cause of action and showed no cause of action or right to damages, and stated no item of damage, and was not filed at the first term. The demurrers were overruled. The declaration alleged, that *408in 1891 defendant contracted to furnish plaintiff' certain, machinery, to wit one boiler complete ; that relying upon the same, they made said contract, the machinery to be-delivered to them by the 8th of May, without which plaintiff could not operate its other machinei’y used in manufacturing ice for some of plaintiff’s customers, of which defendant had full notice; that defendant did not-deliver said machinery as it had engaged to do, but failed and refused to deliver it or any part of it; and that by reason of this failure and refusal plaintiff was unable to-operate its machinery or to manufacture ice, and had to-go to other parties and purchase the same and pay much more therefor. By reason of which it has been damaged $250. The amendment alleged, that defendant, from time to time, after the boiler was to be delivered, kept promising to deliver it and requesting plaintiff to-wait, and at such requests plaintiff did wait until July, 1891, when defendant refused to deliver the machinery; and that during said delay the reasonable profits arising from the running of plaintiff’s machinery used in making ice would have amounted to $500, at which sum plaintiff' fixes its damages for defendant’s failure. It was conceded that the words “ of which defendant had full notice” in the original declaration were interlined by plaintiff’s counsel at the time when the amendment, was written and dated.
John W. Akin, for plaintiff in error.
B. J. & J. McCamy, contra.